Steadman v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE KEITH |
| Judgment Date | 15 April 2002 |
| Neutral Citation | [2002] EWHC 810 (Admin) |
| Docket Number | NO: CO/4973/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 April 2002 |
[2002] EWHC 810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Kennedy and
Mr Justice Keith
NO: CO/4973/01
MR G RUTTER (instructed by Andrew Keenan, Nickleby House, Charles Dickens Terrace, Maple Road, London SE20 8RE) appeared on behalf of the Apellant
MR S WICKENS (instructed by CPS, West Kent Branch) appeared on behalf of the Respondent
Keith J will give the first judgment.
On 13th August 2001 the appellant was convicted at Dartford Magistrates' Court of driving a motor vehicle on a road after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988. He had originally pleaded not guilty, but he changed his plea to one of guilty after the justices had refused to exclude the evidence relating to the proportion of alcohol in his breath. He now appeals against his conviction by way of case stated.
The facts which justices found were as follows. On 13th April 2001 the appellant was driving a motor car in Gravesend. The car was seen by two police officers to be veering from side to side in the road. They required the appellant to stop. When he did so, they noticed that his speech was slurred and his eyes were glazed. They suspected that he had been drinking. He was twice required to provide a specimen of breath for a breath test, but he failed to do so on both occasions. He was arrested and taken to Gravesend police station, where he was searched. A tablet was found on him, but he was not asked what the tablet was or what it was for. He was asked whether he suffered from any illness or injury, and whether he had any medical problems. He simply said that he took sleeping tablets. He was asked whether he was suffering from mental illness, or whether he was dependent on drugs. He said that he was not, and that he had not taken any drugs that evening. After being asked the usual questions as to whether he had drunk or consumed anything in the last 20 minutes, or since being required to stop by the police, to which he replied that he had not, he was required by a police sergeant to provide two specimens of breath for analysis. The appellant did so, and the lower of the two readings showed 70mg of alcohol in 100ml of breath. That was twice the prescribed limit.
The statutory provisions which are relevant to this appeal are sections 7(1) to (4) of the 1988 Act. They provide as follows:
"(1) In the course of an investigation into whether a person has committed an offence under section … 5 of this Act a constable may, subject to the following provisions of this section … require him—
(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test.
(2) A requirement under this section to provide specimens of breath can only be made at a police station.
(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless—
(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or
(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or
(bb) a device of the type mentioned in subsection (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or
(c) the suspected offence is one under section 3A or 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;
but may then be made notwithstanding that the person required to provide the specimen has already provided or being required to provide two specimens of breath.
(4) If the provision of a specimen other than a specimen of breath may be required in pursuance of this section the question whether it is to be a specimen of blood or a specimen of urine shall be decided by the constable making the requirement, but if a medical practitioner is of the opinion that for medical reasons a specimen of blood cannot or should not be taken the specimen shall be a specimen of urine."
Before the justices, the appellant relied on the fact that a tablet had been found on him and that he had told the police that he took sleeping tablets. There was no evidence that the police sergeant who had required him at the police station to provide specimens of breath had considered whether there was reasonable cause to believe that for medical reasons the appellant could not provide, or should not be required to provide, specimens of breath. It was said that if the police sergeant had considered that question, he may well have concluded that there was reasonable cause to believe that for medical reasons the appellant should not be required to provide specimens of breath. Accordingly, it was argued that the evidence relating to the proportion of alcohol in his breath as revealed by the specimens of breath should have been excluded.
An argument along similar lines succeeded in Wade v Director of Public Prosecutions [1996] RTR 177. In that case, the defendant could not be required to provide specimens of breath because a device of a type approved by the Secretary of State was not available at the police station. Section 7(3)(b) therefore permitted the police to require the defendant to provide a specimen of blood or urine. That triggered the operation of section 7(4). When asked whether he wished to say what sort of specimen should be taken, the defendant said that he preferred to provide a specimen of blood rather than urine. He was then asked whether there were any reasons why a specimen of blood could or should not be taken from him, and he replied that he took tablets. There was no evidence whether the police officer who had then required him to provide a specimen of blood had considered whether there were medical reasons making it inappropriate for the defendant to be required to provide a specimen of blood.
The defendant's conviction was quashed by the Divisional Court. The court thought that the police officer had to consider whether the fact that the defendant took tablets was capable of amounting to a medical reason making it inappropriate for the defendant to be required to provide a specimen of blood. That meant that the police officer should have asked the defendant what sort of tablets he took. If the defendant had said, for example, that he took vitamin tablets, the police officer might have been justified in concluding that the defendant's taking of those tablets could not have amounted to a medical reason making it inappropriate for the defendant to be required to provide a specimen of blood. But since the police officer had not asked what tablets the defendant took, he could not have excluded the possibility that they were the sort of tablets which made it inappropriate for the defendant to be required to provide a specimen of blood. He could only have excluded that possibility by seeking the opinion of a medical practitioner on the topic.
The justices concluded that Wade was distinguishable from the present case. Whether a defendant was to be required to provide a specimen of blood or urine was to be decided in accordance with the regime laid down by section 7(4). That was to be contrasted with the question whether there was reasonable cause to believe that for medical reasons a defendant could not provide, or should not be required to provide, specimens of breath, which was to be decided in accordance with the regime laid down by section 7(3)(a). The justices concluded that the fact that the appellant had had a tablet on him, and had said that he took sleeping tablets, could not have provided a proper basis for giving the police officer reasonable cause to believe that for medical reasons specimens of breath could not be provided or should not be required.
It was in those circumstances that the two questions which the...
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